[Infowarrior] - The Broadcast Flag:Returns (again)

[Richard Forno]

I'm going to start calling the Broadcast Flag "Digital Herpes" given that it
never seems to fully go away........frankly I'm surprised Sen Stevens didn't
also include ANWAR drilling in this bill, too......rf



Broadcast Flag Returns on Draft Senate Telecom Bill

Posted by Alex Curtis May 1, 2006 - 2:44pm

http://www.publicknowledge.org/blog/2

The Chairman of the Senate Commerce Committee, Senator Ted Stevens, has
released a draft of this Telecom bill (link to bill coming soon!). Weighing
in at 135 pages, I guess we could say it’s a “hulk” of a bill.

Unfortunately, part of the bill includes language to authorize the FCC to
instate the broadcast flag, but with some interesting exceptions that Public
Knowledge has said, at a minimum, would have to be part of such a tech
mandate. They include:

    *

      the transmission of short excerpts of broadcast digital television
over the Internet;
    *

      the transmission to a limited number of devices over a home or
otherwise localized network
    *

      over the Internet for distance learning purposes
    *

      redistributing news and public affairs (except for sports)

This proposition is a step forward from previous attempts, in that it
actually contemplates limitations on flag technology. However, PK still
thinks these kinds of tech mandates are anti-competitive and harm consumers
and innovators.

At first glance, one problem that comes up immediately is that under the
redistributing news and public affairs provision, it’s for programming “in
which the primary commercial value depends on timeliness as determined by
the broadcaster or broadcasting network.” If the broadcaster is given the
gatekeeper decision of what’s “timeliness,” does anyone think they’re going
to say the news is timely? For reasons of news and commentary under
copyright law, no authorization from the copyright owner is necessary. This
isn’t copyright law, but that’s why we asked for the exception. Even though
the bill gives broadcasters a complaint process at the FCC on abuse of this
kind of use of their timely news, there’s a concern that fair use
protections might not be extended as the FCC is not equiped to make that
kind of determination.

Of course, all of this might be irrelevant because the content industry has
said numerous times that they would accept no broadcast flag carve-outs. So,
if they don’t like it, this part of the bill won’t see the light of day—or
at least the exceptions won’t.

Here’s the full text of that section of the bill, take a look for yourself:

    Subtitle C-Video and Audio Flag

    SEC. 451. SHORT TITLE.

    This subtitle may be cited as the “Digital Content Protection Act of
2006”.

    SEC. 452. DIGITAL VIDEO BROADCASTING.

    Part I of title III (47 U.S.C. 301 et seq.) is amended by adding at the
end the following:

    “SEC. 342. PROTECTION OF DIGITAL VIDEO BROADCASTING CONTENT.

    “(a) IN GENERAL.—Within 30 days after the date of enactment of the
Digital Content Protection Act of 2006, the Commission shall initiate, and
within 6 months after that date conclude, a proceeding—

    “(1) to implement its Report and Order in the matter of Digital
Broadcast Content Protection, FCC 03-273 and its Report and Order in the
matter of Digital Output Protection Technology and Recording Method
Certifications, FCC 04-193; and

    “(2) to modify, if necessary, such Reports and Orders to meet the
requirements of subsection (b) of this section.

    “(b) REQUIREMENTS.—In the regulations promulgated under this section,
the Commission shall permit transmission of —

    “(1) short excerpts of broadcast digital television content over the
Internet; and

    “(2) broadcast digital television content over a home network or other
localized network accessible to a limited number of devices connected to
such network; or

    “(C) broadcast digital television content over the Internet for distance
learning purposes;

    “(2) permit government bodies or accredited nonprofit educational
institutions to use copyrighted work in distance education courses pursuant
to the Technology, Education, and Copyright Harmonization Act of 2002 and
the amendments made by that Act;

    “(3) permit the redistribution of news and public affairs programming
(not including sports) in which the primary commercial value depends on
timeliness as determined by the broadcaster or broadcasting network; and

    “(4) require that any authorized redistribution control technology and
any authorized recording method technology approved by the Commission under
this Section that is publicly offered to licensees, be licensed on
reasonable and nondiscriminatory terms and conditions.

    “(c) REVIEW OF DETERMINATIONS.—The Commission may review any such
determination described in subsection (b)(3) by a broadcaster or
broadcasting network if the Commission receives a bona fide complaint
alleging, or otherwise has reason to believe, that the determination is
inconsistent with the requirements of that subsection or the regulations
promulgated thereunder.

    “(d) EFFECTIVE DATE OF REGULATIONS.—Regulations promulgated under this
section shall take effect months after the date on which the Commission
issues a final rule under this section.’’.